CHANDRA BAHADUR KHETRI Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) The case of the petitioner in brief is that the petitioner was enrolled in the India Army on 31.7.1982 and after attestation as a soldier was earmarked to Gorkha Rifles and rose to the rank of Lans Naik. Due to the annoyance of superior officer, the petitioner was arbitrarily and illegally detained in quarter guard in November 1993 where he was forced to sign certain blank papers. In para-4 of the writ petition, it has been stated that on 1.12.1993 the petitioner was informed that he has been discharged from the Army service on his own request as laid down in Army Rule 13(3) Item III(ii). The petitioner had not volunteered for discharge and as such he was entitled under Rule 134(b) of Defence Services Regulations to continue till he completed 15 years of service or till he attains the age of 40 years. In para-8 of the writ petition, it has been stated that even if it is hypothetically assumed that he had volunteered, such discharge was not permissible under Army Rule 13(3) Item III(ii). As per para-10 of the writ petition, the petitioner had requested for cancellation of his premature discharge, addressed to the Chief of the Army Staff, a copy of which was served on the respondent No. 2 who declined to accept the same on the plea that once the petitioner had been discharged, he had no right of representation under Section 26 of the Army Act, 1950. It has been stated in paras-12, 13 & 14 of the writ petition, that the petitioner had again moved a representation dated 27.12.1993 followed by another representation dated 19.1.1994 to the Chief of the Army Staff and the respondent No. 2.

(2.) The petitioner being aggrieved, by in-action on the part of the respondents to reinstate him in service, filed the present writ petition invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, mainly on the ground that the petitioner's premature, manipulated and mala-fide discharge against his wishes was against the principles of natural justice, law and the statute and Army Rules 13(3) Items III(ii) and (iv). The rights of equality guaranteed under Article 14 of the Constitution of India was violated by the respondents. The petitioner has sought the relief of continuity in service and quashing of the impugned order of his discharge dated 1.12.1993.

(3.) Counter affidavit has been filed on behalf of the respondents along with a supplementary counter affidavit wherein the allegations made against the respondents have been denied. It has been stated therein that the petitioner was discharged from service with effect from 1.12.1993 at his own request made under extreme compassionate grounds under the provisions of Rule 13(3) Items III (iv) of the Army Rules, 1954 and not under Rule 13(3) Items III(ii) of the said Rules. A copy of the said application duly signed by the applicant-petitioner and recommended by his commanding officer, has been annexed as annexure-CA-1 to the counter affidavit. It has been categorically denied that the petitioner was kept in detention/custody and no one forced him to sign on the blank papers. Since, the petitioner had not completed 15 years of maximum pensionable service at the time of his discharge, he was not eligible for service pension as per existing Rules. In para-15 of the counter affidavit, it has been specifically submitted that the application moved before the Chief of the Army Staff against discharge has already been suitably replied. The petitioner never requested for cancellation of his discharge till he was finally struck off strength.